Leichhardt Council v Almarc Consultants Pty Ltd

[2001] NSWLEC 130

Land and Environment Court

of New South Wales

CITATION:	Leichhardt Council v Almarc Consultants Pty Ltd & Anor [2001] NSWLEC 130
PARTIES:	APPLICANT: Leichhardt Council RESPONDENTS: Almarc Consultants Pty Ltd & Anor.
FILE NUMBER(S):	40192 of 2001
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- construction of (i) Development consent for meaning of "associated uses" and (ii) LEP for meaning of "community uses".
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Nix and Dunn v Pittwater Council (1994) 84LGERA 199
DATES OF HEARING:	14 June 2001
EX TEMPORE JUDGMENT DATE :	06/14/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Davison SC SOLICITORS Pike Pike and Fenwick RESPONDENT: Mr D Wilson, Barrister SOLICITORS Paul Marsh

JUDGMENT:

IN THE LAND AND

Matter No. 40192 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

14 June 2001

LEICHHARDT COUNCIL

Applicant

v

ALMARC CONSULTANTS PTY LTD

First Respondent

VAMONA PTY LTD

Second Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its amended Class 4 application, the Council claims declaratory and injunctive relief against the Respondents in respect of the use of the ground floor of a building (known as “Building C”) being one of a cluster of buildings situate on land known as Nos 44 - 46 Smith Street, Balmain (the subject land).

2. The second Respondent owns the subject land and the first Respondent is the occupier of the ground floor of Building C in which it conducts the businesses of a refreshment room and children’s functions centre.

3. Other buildings (known as Buildings A and B) erected on the subject land, together with the bulk of the land area of some 3,100 m2 comprising the subject land are used for the conduct of a Montessori School, such use having commenced in 2000 pursuant to the grant by the Council on 17 February 2000 of development consent in respect of a development application made by the Inner City Montessori Association to use the subject land for “education and associated uses” (the Development Consent).

4. At the outset of the hearing, the parties agreed that the issues in dispute between the parties requiring adjudication by the Court were as follows:
(i.) whether the Development Consent authorised the uses made by the Respondents of Building C, being the uses in respect of which the Council claims declaratory and injunctive relief;
(ii.) if so, whether that authorisation was within the powers conferred by the relevant planning regime comprising the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the deemed environmental planning instrument comprising “Interim Development Order No 27—Municipality of Leichhardt” (the former LEP).
(iii.) if these two issues are determined adversely to the Respondents, whether the Respondents’ uses of Building C are capable of being authorised by cl 29 of Leichhardt Local Environmental Plan 2000, (the current LEP) which came into force on 22 December 2000 and which repealed all former local environmental plans, including the former LEP.

5. The parties agreed that the Court should proceed at once to determine these issues and in this respect, the parties helpfully tendered an Agreed Statement of Facts (Exhibit 2).

6. The Respondents gave notice that if all of these issues were determined adversely to them, they would wish to present a case concerning how the Court should exercise its discretion in moulding the injunctive relief claimed against them inasmuch as a temporary suspension of injunctive relief would be sought by the Respondents. In this respect, the Respondents concede that their uses of Building C would be a breach of the EP&A Act, assuming adverse adjudication on the three issues raised.

B. THE RELEVANT FACTS

7. According to the Agreed Statement of Facts (Exhibit 2) amplified by the documentary evidence, the relevant facts can be summarised as follows:
(i.) The Second Respondent owns the subject land.
(ii.) The first Respondent is the occupier of the ground floor of Building C situate on the subject land.
(iii.) On 11 July 1983 the Minister for Planning and Environment made a direction pursuant to s 117 of the EP&A Act, including Direction G18 which is in the following terms:

Draft Local Environmental Plans, insofar as they refer to schools, colleges or other educational institutions, shall contain provisions that:

(a) allow community use of the facilities and sites of schools, colleges and other educational institutions;
(b) allow commercial operation of those facilities and sites; and
(c) allow any person to carry out development for the purposes of community uses on land used for the purposes of schools, colleges or other educational institutions whether or not the development is ancillary to that purpose.

(iv.) On 17 February 2000 the subject land was zoned Special Uses A (School) under the former LEP.

(v.) The former LEP included cl 35 relating to community use of schools which provided as follows:

Nothing in clause 3 of the scheme in preparation prevents the Council form consenting to:

(a) the community use of the facilities and sites of churches, schools, colleges and other educational establishments;
(b) the commercial operation of those facilities and sites; and
(c) the carrying out of development for community uses on land used for the purposes of churches, schools, colleges or other educational establishments.

(vi.) On 25 October 1999 Inner City Montessori Association made a development application to the Council in respect of the subject land (which application comprises Annexures B, F and G to the affidavit of Michael Shayne Watson sworn 28 March 2001).

Annexure B to Mr Watson’s affidavit comprises the prescribed development application form (registered as DA No D 1999/101) that was lodged with the Council on 25 October 1999.

According to that form (i) the Applicant was Inner City Montessori Association; (ii) the land to which the application relates was No 44 Smith Street, Balmain having a site area of 3,128 m2; and (iii) the proposed development was described as follows:

Description of Works:	Minor works (alterations and additions) together with fire safety upgrades to suit education uses for Balmain Lilyfield Montessori School.
Proposed Use	Education and associated uses Annexure “F”

to Mr Watson’s affidavit comprises the “ Statement of Environmental Effects ” which accompanied the development application and is referred to in terms in the development application form.

According to that Statement, “the development application seeks approval for the adaptation and use of part of the former Sydney College of the Arts at 44 Smith Street, Balmain, as the new Balmain base of the Montessori School—Balmain City Lilyfield together with some minor educational ancillary uses”: p 1.

Part B of the Statement describes the “development proposal” as follows:

This major part of the application is for the adaptation of Buildings A and B and the grounds to be used by the Montessori School as its Balmain campus : p 2

Part C of the Statement describes the development proposal concerning “Ancillary Uses” as follows:

THE PROPOSAL

In addition to The Montessori School, there are some ancillary uses proposed for Buildings C, D and E. These uses are Computer Training base office, a Wellness and Lifestyle Consultation Centre and Tuckshop and Children’s Activity Centre. These activities are run separately from The Montessori School core operation, and in a defined area representing less than 20% of the site area.

Minor building works are currently being carried out to Buildings C, D and E for fire and safety upgrading, and the additional works as part of this application are primarily internal partition works as shown on the drawings.

6.3 Schedule of Proposed Accommodation and Population Building C

Tuckshop and Children’s Activity Centre
Groups of up to 10 children under full adult supervision will be entertained on an irregular and not continuous basis, and within buildings and not externally. This activity could occur between the hours of 8.00 am to 6.00 pm weekdays, 10.00 am to 6.00 pm Saturdays and 11.00 am to 4.00 pm Sundays. There will be a permanent staff of 2 adults, and additional part time staff as activities demand.

Building D
Wellness and Lifestyle Consultation Centre
This activity is an educational facility run in consultation mode with 2 practitioners and 1 support staff member. Consultation is made by appointment with 2 visitors at any given time. Core hours of operation are 9.00am to 5.00pm 3 days per week with some minor after hours consultation.

Building E
Computer Training and Help Centre base office.
2 staff will use this office as a base for off-site computer training, and with small groups of 6 or 7 persons for evening training serving the local community.
Hours of operation will be 8.30 am to 5.00pm weekdays, with one evening class per week between 6.00pm and 9.00pm.
Annexure “G” to Mr Watson’s affidavit comprises the development application plans (that are referred to, in terms, in condition 1 of the Development Consent) including Plan A101 which shows “basement and level 1 plans” of all of the buildings erected on the subject land (A copy of this Plan is annexed hereto and marked “A”). The ground floor level of Building C shows separate sections of Building C annotated as follows:

Art/Craft Room, Tuck Shop, Kiosk, Kitchen, Childrens’ Activity Area

(vii.) No reference was made to clause 35 of the former LEP in the development application, the statement of environmental effects or the Council’s town planning report on the development application.

(viii.) On 17 February 2000 the Council granted consent to the development application subject to conditions including Conditions 1, 4, 27 and 30. Those conditions are in the following terms:

General Conditions

1 Approved plans


The development shall be implemented in accordance with the details set out on the plans number DEM100, DEM101, A101, A102, A103 prepared by PMDL Architects and dated 25/10/99 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder.

4. This development consent does not give approval to the use of Building D as a Wellness Centre , or the use of Building E as a computer training facility.


Reason: These uses (sic) are considered to be commercial operation that do not fit within the accepted definition of a school

27. The property is to be used for the purpose approved only between the hours of 7.00am and 6.30pm Monday to Friday inclusive, and is not to be so used on Saturday, Sunday or public holidays.


Reason: So that the development does not reduce the amenity of the area.
30. The before and after hours child care operation shall only be available for children enrolled at the Montessori School and shall cater for a maximum of 20 students at any one time.

(ix.) From August 2000 the premises comprising the ground floor of Building C have been used as a refreshment room and childrens’ function centre by the first Respondent, unassociated with the Montessori School operating in buildings A and B situate on the subject land. The café and childrens’ function centre are physically separated from the Montessori School. The hours of those uses have been 7.30 a.m. to 5.00 p.m. Monday to Friday and 8.30 a.m. to 5.00 p.m. Saturdays and Sundays.

(x.) On 22 December 2000 the current LEP came into force in terms of which the subject land is zoned “Public Purpose”.

According to cl 28 of the current LEP development other than that included in items (2) or (3) of the Development Control Table is prohibited.


Item 2 (“ Development allowed without Development Consent”) comprises the following:
Development for the purpose of:

Recreation areas except development

Item 3 ( Development allowed only with Development Consent ) comprises the following:

Development for the purpose of

Advertisements
boarding houses
car parking
child care facilities
clubs
community facilities
community gardens
depots
educational establishments
hospitals
high impact telecommunication facilities
markets
passenger transport terminals
places of assembly
places of public worship
police facilities
public amenities
public buildings
public transport stops
recreation facilities
roads
SEPP 5 housing
transport depots
water-based commercial and recreational facilities
demolition
subdivision

8. Clause 29 of the current LEP provides as follows:

General Provisions for the Development of Land
(1) Community use of public facilities

Consent may be granted to community use of the land and facilities of educational establishments, places of public worship, public buildings and hospitals and to the commercial operation of those facilities and their sites, provided that the primary use of the site is retained and the consent authority has considered the impact on residents in the locality.

(2) Development of public purpose land

Consent must not be granted to the carrying out of development of land within the Public Purpose Zone unless the consent authority has taken into consideration whether:

(a) the proposed use of the land or building concerned forms part of a wider proposal for the

development of public spaces, services or facilities serving the community, and

(b) the needs of the existing users of the facilities on the

development site will continue to be met within the locality.

9. The terms “community use” and “commercial operation” appearing in subclause (1) are not defined by the current LEP.

10. The term “educational establishment” is defined by cl 8 as follows:

Educational establishment means a building, or buildings, used as a school, college, technical college, TAFE establishment, academy, lecture hall, gallery or museum, but does not include a building used wholly or principally as a child care facility.

C. DOES THE DEVELOPMENT CONSENT AUTHORISE THE RESPONDENTS’ USES OF BUILDING C?

11. This question will be answered by the proper construction of the Development Consent. If the question is answered affirmatively, the answer will be necessarily provisional because it will then become necessary to answer the second question which raises the question of the scope of the Development Consent vis a vis the enabling provisions of the former LEP.

12. On the other hand, if the question is answered negatively, that answer will be self-sufficient and it will be strictly unnecessary to answer the second question.

13. In my judgment, the Development Consent does not authorise the Respondents’ uses of Building C, being uses as and for a “refreshment room” and “children’s function centre” which are unassociated with the use of Buildings A and B by and for the Montessori School (vide agreed fact (ix)).

14. Properly construed, the Development Consent did not authorise or sanction all of the proposed development that had been the subject of the development application. This result flows directly from the express terms of the Development Consent, and in particular, from the terms of conditions 1 and 4 (which I have earlier recited). In particular, the Development Consent did not authorise the proposed development of Building D from the “Wellness Centre” or the proposed development of Building E for the “computer training centre”: vide condition 4.

15. It is of interest to note that the stated reasons for the imposition of condition 4 was :

These use(s) are considered to be commercial operation that do not fit within the accepted definition of a school.

16. What then was the development which the Development Consent sanctioned or authorised?

17. Clearly, the Development Consent sanctioned and authorised the adaptation of Buildings A and B and the relevant grounds for use as the Montessori School, but subject to the specified conditions including condition 27 (limiting the approved use to the hours 7 am to 6.30 pm Monday to Friday), Condition 29 limiting the number of enrolled children to a maximum of 210 and condition 30 limiting the before and after hours “child care operation” to a maximum at any one time of 20 students enrolled at the Montessori School.

18. Equally clearly, the Development Consent sanctioned and authorised (but again subject to the conditions imposed) the uses of Building C as a “Tuckshop and Children’s Activity Centre” provided that such uses were “ancillary” to the Montessori School (albeit the activities “are run separately from the Montessori School core operation”) or qualified as “minor educational ancillary uses” or qualified as “associated uses to the educational use”. Each of the alternate formulations that I have just expressed as a proviso is found in the terms of the development application comprising in toto as it does, the prescribed form and the statement of environmental effects, the relevant contents of which I have earlier recited, which contents are, in turn expressly adopted by the Development Consent.

19. In my judgment, the Development Consent, properly construed, sanctioned or authorised the specified uses of Building C but only as uses that were “ancillary to”, or “associated with”, the approved Montessori School use of Buildings A and B and the bulk of the site area of the subject land, albeit being uses that “are run separately from the Montessori School core operation”. This last mentioned characteristic or qualification of the approved uses does not however, properly construed, cut down or eliminate the quality of qualification that the approved uses must be uses that are “ancillary to”, or “associated with” the approved Montessori School use.

20. Accepting that the concept of “an associated” use may be a wider concept than “an ancillary” use (cf Nix and Dunn v Pittwater Council (1994) 84LGERA 199 at 205), the Respondents’ uses of Building C, as they have been earlier described, are clearly neither “associated with” nor “ancillary to” the approved Montessori School use. Rather, those uses are entirely unassociated with the Montessori School use. Being thus “unassociated” uses, it follows that they do not qualify as “ancillary” uses (being the narrower concept).

21. So far, in construing the Development Consent to determine what uses of Building C it sanctioned and authorised, I have not adverted to the question of the permitted hours of operation of the approved uses. In this respect, Condition 27 relevantly limited the hours of operation so as to absolutely preclude use on Saturdays and Sundays. To that extent, (and it is an important limitation particularly in view of the agreed fact that the Respondents’ uses extend to Saturdays and Sundays between the hours of 8.30 am to 5.00 pm) the Development Consent did not sanction or authorise the approved uses of Building C for the hours of operation that had been sought in the development application (which had included uses on Saturdays between the hours of 10 am and 6 pm and on Sundays between the hours of 11 am to 4 pm).

22. The imposition of condition 27, imposing the same limitations on the hours of operation for the uses of Building C as for the Montessori School use of Buildings A and B, provides additional (though unnecessary) support for my conclusion that the approved uses of Building C were limited to those uses that were ancillary to or associated with the approved School use.

23. For all the foregoing reasons, I hold that the Development Consent, upon its proper construction, does not authorise the Respondents’ uses of the ground floor of Building C.

D. DID THE FORMER LEP PERMIT THE GRANT OF CONSENT SO AS TO SANCTION OR AUTHORISE THE RESPONDENTS’ USES OF BUILDING C?

24. My negative answer to the question just considered means that this question does not strictly arise. However, since the question was fully argued, I should for completeness, express my views on its.

25. The only possible source of enabling power is cl 35 (the terms of which I have earlier recited).

26. In my judgment, on the agreed facts of the present case, (especially fact (ix)), the Respondents cannot avail themselves of any enablement under cl 35 for the simple reason that the Respondents’ uses are not uses of (i) “the facilities and sites of a school” (par (a) and par (b)) or (ii) “land used for the purpose of a school”) (par (c)).

27. According to the agreed facts, Building C has no association with the Montessori School. It is owned by the second Respondent and is used and occupied by the first Respondent, being entities and uses entirely unassociated with the Montessori School Association. As a simple matter of fact, it follows that Building C is neither a school “facility or site” or “land used for the purposes of a school” within the meaning of cl 35.

28. In an attempt to avoid this inevitable factual conclusion, the Respondents advanced the curious (and self-defeating argument) that because the Development Consent related to the whole of the subject land (including Building C) the approved School use relevantly qualified Building C as a school “facility or site” or “land used for the purpose of a school” for the purposes of cl 35. I respectfully regard the argument as curious and self-defeating because the Respondents’ principal argument (which I have rejected) was to the effect that the approved uses of Building C were independent of the approved school use of Buildings A and B and the bulk of the site area of the subject land.

29. The Respondents’ response to the suggestion that their argument was self-defeating and contradictory to its principal argument on the question of the proper construction of the Development Consent, was that the argument was being advanced as an alternative argument.

30. But with respect, this submission does not advance the Respondents’ case because if (as I have held) the proper construction of the Development Consent is that the approved uses of Building C are limited to such uses that are ancillary to, or associated with, the approved Montessori School use, that construction simply excludes even the possibility of the existence of cl 35 of the former LEP, operating to produce an entirely repugnant construction of the Development Consent.

31. To the extent that the Respondents’ argument is to be understood as an alternative to its principal argument on the proper construction of the Development Consent, I fear that the argument goes nowhere because (i) it cannot subvert the true construction of the Development Consent; (ii) the concepts of “associated school uses” and “unassociated uses” are mutually exclusive; and (iii) as the former LEP has been repealed since December 2000, it ceases to have any current relevance to the question of the Respondents’ uses of Building C.

32. For all the foregoing reasons, I hold that the former LEP (and in particular, cl 35 thereof) did not enable development consent to be granted so as to sanction the Respondents’ uses of Building C.

E. DOES CL 29 OF THE CURRENT LEP PROVIDE A POSSIBLE SOURCE FOR SANCTIONING THE RESPONDENTS’ USES OF BUILDING C?

33. This question arises, principally I infer, because only yesterday the Respondents have lodged a development application with the Council seeking development consent for the Respondents’ current uses of Building C. It is common ground that the only possible source of enablement under the current LEP is cl 29 (the terms of which I have earlier recited).

34. In my judgment, cl 29 does not, and cannot, on the agreed facts of the present case, avail the Respondents’ uses of Building C, for the same reason that I have held that the counterpart provision contained in cl 35 of the former LEP, could not be availed of, in defence (or support) of the Respondents’ uses of Building C.

35. The agreed facts clearly exclude even the possibility of the enablement provided by cl 29 being available in the present case.

36. On the basis of those facts, Building C is simply not “land and/or facilities of an educational establishment” within the meaning of cl 29.

37. This is a full and sufficient basis for holding that cl 29 cannot be invoked to sanction or authorise the Respondents’ uses of Building C.

38. Other questions concerning the true construction of the enabling provisions of cl 29 were debated, in particular whether it authorised the grant of consent for “the commercial operation” of school facilities or sites independent of, or unqualified by “community uses” (as contended by the Respondents) or whether it merely authorised the “community use” of such facilities or sites which use may be “operated commercially” (as contended by the Council).

39. This is an important question which does not require a definitive answer in the present case, in view of my earlier holding that the clause simply does not apply, on the agreed facts of the present case. Accordingly, I would prefer not to express a concluded view on the question, other than to say that having regard to the entirety of the provisions contained in Pt 7 of the current LEP which include the Development Control Table (cl 28) and cl 29, I am firmly of the opinion that the construction argued by the Council is to be preferred to that argued by the Respondents. In particular, the fact that Pt 7 is dealing exclusively with “community uses” and the fact that cl 27, which declares the “objectives of the plan in relation to community uses”, and includes the following express objective:
(b) to facilitate the equitable provision and improve the range, quality and distribution of community and cultural facilities and services to meet the needs of residents, workers and visitors (emphasis added).

leads to the strongest impression that the enablement provided by cl 29 is exclusively concerned with “community uses” (whether operated commercially or otherwise) of school etc facilities and sites.

40. For all the foregoing reasons, I hold that cl 29 of the current LEP cannot be availed of to sanction or authorise the Respondents’ uses of Building C.

F. DISCRETIONARY CONSIDERATIONS

41. At the conclusion of the competing arguments I announced that my conclusions were adverse to the Respondents in respect of each of the issues in dispute.

42. This left unresolved the question of how the Court should exercise its judicial discretion in terms of the Respondents’ foreshadowed submission that they would invite the Court to mollify the effects of an immediate injunction by suspending it for a reasonable period of time eg six months.

43. Following a requested short adjournment, the parties informed me that the parties had now agreed that in the exercise of its discretion, the Court should grant the declaratory and injunctive relief claimed but suspend the injunctive relief for a period of one month.

44. In my judgment, this joint submission should be accepted and I shall adopt it in the orders I propose to make.

G. ORDERS

45. For all the foregoing reasons, I make the following orders.
1. A declaration that the Respondents are using, allowing or suffering to be used the ground floor of the premises known as building C at 44-46 Smith Street, Balmain, also known as Lot 1 DP 782348, Lots 1 and 2 DP 782330 and Lot 1 DP 228261 (“the subject premises”) for the purposes of a café/restaurant and children’s functions centre independent of the use of the subject premises as an educational establishment.
2. The Respondents, their servants, agents and contractors cease using, permitting or suffering to be used, the subject premises or part thereof for the purposes of a café/restaurant or children’s functions centre.
3. The Respondents, their servants, agents or contractors be restrained from using Building C on the subject premises unless and until a construction certificate and occupation certificate is granted by Council for Building C on the subject premises.
4. Order in par 2 is suspended for a period of one month from today.
5. The Respondents pay the Applicant’s costs in the proceedings in the sum agreed and failing agreement, as assessed.
6. Exhibits other than Exhibits 5 and 6 may be returned.

ANNEXURE A

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